The Second District Court of Appeal, which covers fourteen counties in West Central Florida and Southwest Florida from Pasco County in the north to Collier County in the south, issued a decision in June 2015 that significantly expands the rights of real property owners in Southwest Florida. In the case entitled FINR II, Inc. v. Hardee County, the appellate court ruled that
the Bert [J.] Harris [, Jr., Private Property Rights Protection] Act provides a cause of action to owners of real property that has been inordinately burdened and diminished in value due to governmental action directly taken against an adjacent property.” (Emphasis added.)
Facts of the Case
In FINR II, FINR purchased land in Hardee County in 1996. At the time, FINR’s land held an agriculture and public institutional purpose future land use designation. In 2007, FINR successfully applied to amend the Hardee County Comprehensive Plan and change FINR’s future land use designation to rural center. The “rural center” designation provided FINR with a quarter-mile setback that applied to the adjacent properties and prohibited phosphate mining activities in the setback. In 2010, one of FINR’s neighbors, CF Industries, Inc., applied to the County to begin new phosphate mining activities, obtain a major special exception, and reduce the setback. The County granted the special exception and reduced the rural center setbacks to allow CF Industries to mine phosphate within 150 feet to the west and north of FINR’s property and within 207 feet to the east of FINR’s property.
FINR filed a lawsuit seeking compensation under the Bert J. Harris, Jr., Private Property Rights Protection Act, but FINR’s lawsuit was dismissed when the trial court ruled that there was no claim available under the Bert Harris Act in these circumstances. The Second District Court of Appeal, however, as shown, ruled otherwise.
Impact of Appeal’s Court Decision
The decision is remarkable because only a few months ago, in February 2015, the First District Court of Appeal, which covers thirty-two counties in North Florida from Escambia County in the west to Nassau, Duval, and Clay Counties in the east, ruled that the Bert Harris Act does not provide a cause of action to property owners whose property was not subject to any governmental regulation. The Supreme Court of Florida will hear an appeal of the First District Court of Appeal’s decision in that case, which is entitled City of Jacksonville v. Smith. This should give the Supreme Court of Florida an opportunity to resolve the competing rulings.
The take-away for property owners in Southwest Florida is this: you may want to talk to a lawyer if a local government regulation concerning adjacent property inordinately burdens and diminishes the value of your property.
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